Sprint Company Limited & 1 other v Powel Oyugi T/A Powel Jea Enterprises

2. The respondent entered appearance and filed a statement of defence and counterclaim dated 27th May 2024 denying all allegations pleaded against it and conversely counterclaiming against the appellants for damages in the sum of Kshs. 132,500/=. 3. The appellant in rejoinder to the counterclaim dated 10 th June 2024, reiterated the contents of the statement of claim and proceeded to pray for judgment in their favour as per their claim. 4. In her judgment, the trial adjudicator found that the appellants had not proved their claim and dismissed it with costs and proceeded to enter judgment for the respondent in the sum of Kshs. 265,000/=. The court further awarded the respondent the costs of the suit plus interest at court rate. 5. Being dissatisfied with the said judgment/decree, the appellants lodged this appeal vide the Memorandum of Appeal dated 23rd August 2024 and raised eight (8) grounds of appeal as follows: 1) The learned Adjudicator erred both in fact and in law in dismissing the appellants’ case and allowing the respondent’s counterclaim when all facts in law and pointed in the opposite direction. 2) The learned magistrate erred misdirected herself by failing to appreciate the Page 2 of 8

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pleadings and entire matter hence entering judgment for the respondent on the counterclaim in an unclaimed amount of Kshs. 265,000/= allegedly being unpaid balance yet the said amount was not claimed or prayed for in the counterclaim or submissions and which amount was clearly not the unpaid balance. 3) The learned magistrate/adjudicator erred in law and in fact in finding that the appellants were in breach of a contract, yet the circumstances changed once the respondent agreed to make a refund of the deposit paid by the appellant. 4) That the learned magistrate/adjudicator erred in law when she completely ignored the evidence adduced by the appellants and further misdirected herself in allowing the respondent’s counterclaim yet no evidence or proof was provided by the respondent. 5) The learned magistrate erred in law and fact when she held that the appellants were not entitled to a refund of the amount of Kshs. 132,500/= together with interests thereof despite the respondent’s admission that he received the deposit for the tshirts which he in turn never delivered. Page 3 of 8

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6) The learned magistrate erred in law and fact when she failed to appreciate that in keeping both the tshirts and the deposit which had been paid, the respondent had his cake and still ate it. 7) The learned magistrate erred in law and in fact and misdirected herself when she failed to find that the appellant had proved his case on a balance of probabilities. 8) The learned magistrate occasioned a miscarriage of justice by failing to consider all the evidence presented and instead considered extraneous matters to the detriment of the appellants. 6. I have carefully considered the submissions filed by both parties. This being a first appeal, the Court is duty bound to evaluate the evidence before the trial court afresh and come to its own independent findings and conclusions. See Selle vs. Associated Motor Boat Co Ltd & Others [1968] EA 123. 7. Before the trial court, the parties proceeded under section 30 of the Small Claims Act which provides that subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court. Page 4 of 8

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8. It is upon this basis that the trial court proceeded to determine the suit before it. 9. I have considered the evidence tendered before the trial court and the submissions made before me. This being an appeal from the Small Claims Court, it is important to point out that Section 38 of the Small Claims Court Act provides for the jurisdiction of this Court in determining appeals from the Small Claims Court. It provides thus; 1) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law. 2) An appeal from any decision or order referred to in subsection (1) shall be final.” 10. It is clear from the foregoing that the jurisdiction of this Court from the Small Claims Court is only on matters of law and not factual issues. 11. In this appeal, the question for determination by this Court that arises from the grounds of appeal pleaded by the appellant is whether the trial court wrongly found in favour of the respondent on a balance of probabilities. 12. In Wanjiru v Kiilu (Civil Appeal 90 of 2023 ) [2024] KEHC 8881 (KLR) (19 July 2024) (Judgment), the High Court appreciated its appellate jurisdiction in respect of appeals emanating from decisions of the Small Claims Court as follows: Page 5 of 8

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“It therefore follows that appeals originating from the Small Claims Court to this court can only be on the points of law. Consequently, this court cannot, in appeals emanating from that Court, entertain an invitation to interfere with the factual findings of the trial court. The duty of this court when dealing with such appeals, is therefore equivalent to that of the Court of Appeal in its capacity as a second appellate court.” 13. In the case of Charles Kipkoech Leting v Express (K) Ltd & another [2018] eKLR, the Court of Appeal clarified that where a right of appeal is confined to questions of law only, an appellate court is duty bound to accept the findings of fact of the lower court and should not interfere with the decisions of the trial court on the factual issues “unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law”. 14. In its judgment, the trial court made a finding that indeed there was an oral contract between the parties. The trial court further made a finding of law that it is the appellants who breached the said contract by unilaterally altering the terms thereof. Pursuant to the said finding, the trial court concluded that the claimant was in breach of the oral agreement and entered judgment in favour of the respondent. For unknown reasons, Page 6 of 8

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the trial court awarded the respondent Kshs. 265,000/= which had neither been pleaded nor proven. 15. Having carefully reviewed the evidence on record, my finding is that the trial court erred in law in finding that the appellants breached the contract yet the respondent had already agreed to refund the deposit. The trial court further erred in law by entering judgment in favour of the respondent for a sum that had neither been pleaded not proven. This was in spite of the fact that no t-shirts had been delivered to the appellants. The judgment of the lower court occasioned a grave injustice to the appellants and is for setting aside. 16. In the end, I do hereby find and hold that the appeal herein is merited. I therefore make the following orders: a) The appeal is hereby allowed. b) The judgment of the lower court is hereby set aside and substituted with a judgment allowing the appellants’ claim of Kshs. 132,500/=, interest at court rate from the date of filing suit in the lower court until payment in full and costs of the suit in the lower court. c) An order dismissing the respondent’s counterclaim with costs. d) The appellants shall also have the costs of the appeal. Page 7 of 8

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David Mburu Judge 11/06/2026 Dated, signed, delivered virtually and uploaded to the Case Tracking System this 11th day of June, 2026. Page 8 of 8

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